Maryland Criminal and /DUI/DWI Attorneys frequently represent individuals who are charged with driving under the influence of alcohol, DUI, or driving while impaired by alcohol, DWI, by Maryland Transportation Authority Police or Maryland State Troopers. In many of these cases the entire stop is videotaped by the State Trooper or MTA Officer and this video tape can be subpoenaed by the Maryland Criminal/DUI/DWI Attorney. In a recent DWI case that I had in Baltimore County District Court, my client had blown just a .07 and insisted that he had not failed the field sobriety tests as the MTA Officer who stopped him had claimed in his report. To be fair to the officer, he did not claim that my client had done terribly on the field sobriety tests but had nonetheless concluded that he had failed. After being retained by my client I immediately issued a subpeona decus tecum for not only the video tape but for the MTA’s General Orders regarding the operation of dash board video cameras known as MVR equipment.
Soon I received a letter from the MTA claiming that the video camera had not been operational on the evening that my client was arrested, along with a copy of the general orders relating to the use of MVR equipment. At trial in the District Court for Baltimore County, my client was faced with a rebuttable legal presumption that he was driving while impaired based upon the intoximeter .07 blood alcohol content result. I was obviously unable to present the video to contradict the officer’s testimony, so instead I cross examined him with the general orders which stated in pertenent parts, that the objective is the “accurate documentation of events, actions, condition and statements made during arrests and critical incidents, so as to enhance the officer’s reports, collection of evidence and testimony in court”. The orders also stated that the “MVR equipment shall be used on every traffic stop” and that it is officer’s responsibility to insure that the equipment is working prior to beginning his or her shift and if it is not working to report this condition to the officer’s supervisor by “written documentation”. On cross, the officer admitted that he had not checked the equipment prior to beginning his shift, much less reported the fact that it was not operating by written or any other means of communication to his supervisor as required by the general orders. I also pointed out several discrepancies between the officer’s report and his testimony and had him highlight parts of the field sobriety tests that my client had performed to his satisfaction.
I then argued to the court that the video would have been particularly helpful in a case with a blood alcohol reading this low and a significant disagreement between the parties as to my client’s performance on the field sobriety tests. The State argued that the MTA was not required by law to video tape dui/dwi stops and accordingly the judge should place no weight on the fact that a recording was not made in this case. The Judge disagreed with the State and ruled that the MTA’s failure to follow their own procedures rebutted the legal presumption that my client was impaired. The court went on to find my client not guilty citing the numerous discrepancies between the officer’s original report and his testimony as well as the officer’s testimony that the client had performed some parts of the field sobriety tests correctly.